Update on TSCA Mercury Inventory Reporting Rule

Beveridge & DiamondMark Duvall, Shengzhi Wang

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EPA has extended the December 26, 2017 deadline for comments on its proposed rule on reporting obligations relating to mercury, mercury compounds, and mercury-added products until January 11, 2018.1 The proposed rule was published on October 26, 2017.2 The rule is intended to assist EPA with updating a mercury inventory that Congress mandated under the Toxic Substances Control Act (TSCA) section 8(b)(10). The final rule has a statutory deadline of June 22, 2018.

The proposed rule is the latest piece of the federal mercury regulation under TSCA and EPA’s mercury program. A range of TSCA requirements and EPA actions concern mercury and mercury-related products, including the mercury inventory, the mercury export ban and federal transfer ban, a significant new use rule for certain uses of elemental mercury, two TSCA Work Plans released in 2012 and 2014, EPA’s 2008 risk-evaluation on mercury, and TSCA Title V health school guidelines that address mercury products and release in schools. These actions are further complemented by other federal mercury-related programs, as well as state and international laws. This alert reviews the proposed mercury inventory reporting rule and surveys the mercury-related laws and regulations mentioned above.

Mercury Inventory Updates and the Proposed Inventory Reporting Rule

Congress added section 8(b)(10) to TSCA in the Frank R. Lautenberg Chemical Safety for the 21st Century Act (LCSA), which was enacted on June 22, 2016. The new section 8(b)(10) of TSCA requires that EPA “carry out and publish in the Federal Register an inventory of mercury supply, use, and trade in the United States” every three years, starting from April 1, 2017. In the same section, Congress also required EPA to promulgate a final rule within two years of enactment of the LCSA that would require certain entities report to EPA periodically to assist with EPA’s mercury inventory update. The persons to be subject to this reporting rule include domestic manufacturers and importers of mercury, mercury compounds, or products to which mercury or mercury compounds have been added, as well as any person who “otherwise intentionally uses mercury [or mercury compounds] in a manufacturing process.” Section 8(b)(10) defines “mercury” to include both elemental mercury and mercury compounds.

In response to this Congressional mandate, EPA prepared an initial inventory report for mercury supply, use, and trade in the United States. EPA’s initial mercury inventory report, released on March 29, 2017,3 showed that elemental mercury was still being supplied through either metal mining and processing as a byproduct or recovery from treatment of waste; that it was used in a range of products, most prominently in switches and relays as well as dental amalgams, and also in the manufacturing process of the chlor-alkali industry. The report also stated that by 2016, elemental mercury was imported into, but no longer exported from, the United States. In addition, two mercury compounds were said to be still supplied in the United States; one mercury compound was used as specialty chemicals in a minimal amount; and by 2016, mercury compounds were both imported into and exported from the United States. Notably, most mercury supply and use information that EPA relied on in the initial inventory report was compiled in or before 2013.

The proposed rule addresses the entity reporting component of the mercury inventory update. The rule would establish a new Part 713 of the TSCA regulations, which would cover manufacture, import, distribution in commerce, and export of mercury or mercury-added products, as well as other intentional use (in the manufacturing process) and storage (after manufacture or import) of mercury.4 The chemicals subject to the reporting requirements would include both elemental mercury and a range of over 60 mercury compounds, as EPA listed in the proposed rule.5 EPA also provided a categorized list of mercury-added products subject to the reporting, which include:6

Batteries

Dental amalgam

Formulated products used in cosmetics, pesticides, and laboratory chemicals

Lighting, lamps, and bulbs, measuring instruments

Pump seals, switches, relays, sensors, and valves

A few other miscellaneous products such as wheel weights and rotation balancers, firearm recoil suppressors, carburetor synchronizers, etc.

The proposed rule would primarily cover three groups of reporting entities:7 manufacturers and importers of mercury and mercury compounds, manufacturers and importers of mercury-added products, and other intentional users of mercury in the manufacturing process.8

Several groups of entities would not be required for reporting under the proposed rule. These include entities that engage in the generation, handling, or management of mercury-containing waste, who do not manufacture or recover mercury from the management of such waste;9 entities that engage in trade but are not any of the three main categories of reporting companies;10 and, presumably in accordance with the language of the proposed rule, entities that manufacture or import products that contain components that are mercury-added products (e.g., an importer of a toy that contains a battery that may contain mercury).11 EPA invited comments on these exceptions.12

EPA recognized that a range of information relating to mercury and mercury-added products have already been reported under other data collection systems. These systems include the Interstate Mercury Education and Reduction Clearinghouse (IMERC), the Chemical Data Reporting (CDR) rule under TSCA 8(a), the Toxics Release Inventory (TRI) program, and the USITC DataWeb. EPA claimed that it sought to “avoid collecting data on mercury that would be duplicate information already reported to existing state and federal programs, and to coordinate with and complement those reporting programs as much as possible.”13

As a result, certain entities subject to other reporting systems have reduced burden to report under the proposed rule. For example, manufacturers or importers of more than 2,500 lbs or elemental mercury or 25,000 lbs of mercury compounds per reporting year are currently reporting under the CDR program. These entities therefore do not have to report the amounts of manufactured, imported, or exported mercury or mercury compounds, as the CDR program collects such information.14 As another example, manufacturers or importers of mercury-added products that currently report to IMERC would not need to report the amount of mercury distributed in commerce, because they would need to report the information to IMERC.15 While EPA did not explicitly provide any similar relief based on a reporting entity’s participation into the TRI or the USITC DataWeb programs, it claimed that the proposed rule had incorporated “comparable reporting concepts and tools from each program.”16

Amount of mercury in products distributed in commerce (only for non-IMERC reporters)

Contextual requirements

Countries of origin for imported products

Countries of destination for exported products

NAICS codes for products distributed in commerce

Specific requirements

The company should specify in reporting, as applicable, the specific categories or the subcategories of mercury-added products (based on a list in the regulation that enumerated product categories from batteries to miscellaneous products).

For “persons who otherwise intentionally use mercury in a manufacturing process”:19

General requirements

Amount of mercury otherwise intentionally used in a manufacturing process

Amount of mercury stored

Amount of mercury in exported final products

Amount of mercury in final products distributed in commerce

Contextual requirements

Countries of origin for imported products

Countries of destination for exported products

NAICS codes for products distributed in commerce

Specific requirements

The company should specify in reporting, as applicable, the manufacturing process and the specific use of mercury in the process. The proposed rule provided two lists for the reporters to choose the proper items.

The proposed rule would require initial reporting by July 1, 2019. Subsequent reporting would be at three-year intervals (e.g., the second reporting would be due by July 1, 2022).20 The initial reporting, designated as for the 2020 reporting year, would cover January 1 to December 31, 2018.21 Reporting entities would also need to retain records for at least three years beginning on the last day of the reporting year.22

Other mercury-related requirements under TSCA and EPA actions

In addition to the mercury inventory and the mercury inventory reporting requirement now under development, TSCA also includes a few other mercury-related requirements. These requirements are further complemented by EPA’s regulatory and policy actions.

1. TSCA Federal Agency Transfer Ban and Export Ban

TSCA sections 6(f)(1) (federal agency transfer ban) and 12(c) (export ban) originated from the Mercury Export Ban Act of 2008 (MEBA), which was introduced by then-Senator Barack Obama and signed into law by President George W. Bush. The MEBA was designed to “reduc[e] the flow of mercury in commerce, which will reduce opportunities for people and wildlife to be exposed to mercury.”23 To do so, it introduced a three-pronged solution under which the Department of Energy (DOE) must collect, manage, and store all elemental mercury within the United States:

The MEBA added section 6(f)(1) of TSCA. It prohibits federal agencies from selling, distributing, or transferring elemental mercury to essentially any other entity, public and private alike, except within the federal government for the ultimate long-term storage.24

The MEBA added section 12(c) of TSCA. It prohibits elemental mercury exports from the United States unless, under subsection (c)(4), EPA grants an exemption “for a specified use at an identified foreign facility” on the basis of “essential use.” The ban took effect on January 1, 2013.

The MEBA amended the Resource Conservation and Recovery Act (RCRA), directing DOE to designate and operate certain facilities “for the purpose of long-term management and storage of elemental mercury generated within the United States.”25 The law authorized DOE to indemnify persons delivering elemental mercury to DOE’s designated facilities from and against liabilities or costs resulting from releases or threatened releases after the mercury is delivered (unless the persons contribute to such incidents).

The MEBA primarily addressed elemental mercury. Mercury compounds were not substantively subject to either the federal transfer ban or the export ban as written in the 2008 legislation. The MEBA only directed EPA to report to Congress on mercury compounds “used in significant quantities in products or processes.”26 To facilitate the reporting, Congress authorized EPA to exercise its authority under TSCA sections 10 and 11, including researching, monitoring, inspections, subpoenas, and other methods.

Congress eventually took more substantive measures on mercury compounds in the LCSA, amending section 12(c) to prohibit the export of mercury compounds starting from January 1, 2020. Exempt are exports to the Organization for Economic Co-operation and Development (OECD) member countries for “environmental sound disposal,” so long as no mercury or mercury compounds would be recovered, recycled, reclaimed for use, or directly reused.

Under the LCSA, Congress enumerated five categories of mercury compounds that must be banned from export:

Mercury (I) chloride or calomel

Mercury (II) oxide

Mercury (II) sulfate

Mercury (II) nitrate

Cinnabar or mercury sulphide

EPA was authorized to add any mercury compound to the list on a determination that “exporting that mercury compound for the purpose of regenerating elemental mercury is technically feasible.” EPA must publish its lists of prohibited compounds by rule, the first of which needed to be available no later than 90 days after the enactment of LCSA. Any person may petition EPA to add mercury compounds to the list.

In response to the mandate under TSCA section 12(c), EPA published a list of prohibited compounds on August 26, 2016.27 This initial list included the five chemicals that Congress enumerated under the LCSA, but did not otherwise add any new mercury compound. However, EPA repeated that any person can petition to add other mercury compounds in the future.

2. EPA’s SNUR for Certain Uses of Elemental Mercury

EPA also promulgated a significant new use rule (SNUR) for elemental mercury under TSCA section 5(a)(2). A manufacturer or processor of elemental mercury for any of the “significant new uses” of elemental mercury described in the SNUR must submit a notice (called a significant new use notice or “SNUN”) for EPA’s review before commencing those activities. After reviewing the SNUN, EPA may impose restrictions the requested uses.

EPA first adopted the SNUR for elemental mercury in 2007. Subsequently, EPA expanded the scope of the SNUR by adding more significant new uses of elemental mercury:

In 2007, EPA published the original elemental mercury SNUR designating as a significant new use the use of elemental mercury in mercury switches in motor vehicles for convenience lights, antilock braking systems (ABS), and active ride control systems.28

In 2010, EPA added as a significant new use the use of elemental mercury in flow meters, natural gas manometers, and pyrometers.29

In 2012, EPA added as a significant new use the use of elemental mercury in barometers, manometers, hygrometers, and psychrometers.30

The SNUR for elemental mercury is codified in 40 C.F.R. § 721.10068.

3. TSCA Work Plan

In 2012, EPA published a TSCA Work Plan for Chemical Assessments, which identified 83 chemicals for EPA assessment. This TSCA Work Plan was then updated in 2014, which Congress later referred to in the LCSA.

Mercury and mercury compounds were listed in the 2012 TSCA Work Plan. EPA removed them from the 2014 TSCA Work Plan, explaining:

EPA is removing mercury and mercury compounds from the TSCA Work Plan for Chemical Assessments because their hazards are already well characterized and EPA has a strong risk reduction effort in place. Protecting human health and the environment by reducing exposures to mercury and mercury compounds remains a priority for EPA, and the Agency has taken and continues to take risk management measures for these chemicals, including efforts to implement the Minamata Convention. Therefore, the Agency does not believe that its risk management activities on mercury and mercury compounds need additional assessment under the process for the TSCA Work Plan for Chemical Assessments.31

Because mercury and mercury compounds are not on the 2014 TSCA Work Plan, they do not fall under the provisions in section 6 of the amended TSCA referencing the 2014 Work Plan.

4. 2008 Risk-Based Prioritization on Mercury under the ChAMP

Back in the late 2000s, EPA operated a Chemical Assessment and Management Program (ChAMP) as part of the efforts by the U.S. to meet its commitments under the Security and Prosperity Partnership of North America. In November 2008, EPA published an “Initial Risk-based Prioritization of Mercury in Certain Products” under the ChAMP. In the document, EPA reviewed a variety of information relating to mercury such as its hazard and fate, exposure, alternatives in commerce, and others. EPA concluded that mercury used in the analyzed products constituted a “high-priority, special concern.”

5. Healthy School Guideline (TSCA Title V)

Section 504(a) of TSCA requires EPA to issue voluntary guidelines that help states develop and implement environmental health programs for schools.32 In developing the guidelines, EPA must take into account a range of factors, including “the presence of elemental mercury releases from products and containers” with respect to school facilities.

In October 2012, EPA published its state school environmental health guidelines on its website.33 In the guidelines, EPA laid out a number of mercury-related suggestions in the guideline, including to:34

Perform screening and inspections of mercury-containing items at the school.

Review the school’s mercury inventory list, and, if there is no inventory, identify and catalog all elemental mercury, mercury compounds, mercury solutions, and mercury-containing devices at the school.

Institute a chemical purchasing policy at the school that prohibits the purchase of mercury products.

Remove or replace all excess, outdates, and unneeded mercury-containing products with mercury-free alternatives.

Ensure that mercury recycling and disposal are in accordance with regulations.

In 2013 EPA subsequently updated a list of the state statutes concerning mercury in schools.35

Mercury under Other Federal, State, and International Laws and Regulations

In addition to the federal laws and regulations under TSCA, mercury has also long been subject to regulations under other federal programs, such as RCRA, as well at the state and international levels. For example, we previously reported federal air, hazardous substance, and water programs relating to mercury. Federal programs on mercury in other environmental contexts continued to grow in recent years.36

States have been adopting mercury-related legislation. New York, for example, enacted a law in 2016 to phase out mercury-added wheel weights and balancing products. Maryland passed two bills in 2017, one restricting mercury concentration for certain wheel weights, and the other prohibiting the sale or provision of mercury-containing electric switches, electric relays, and gas valves.

Internationally, the Minamata Convention on Mercury, an international treaty under the United Nations, became effective on August 16, 2017. The first Conference of the Parties took place September 24-29, 2017 in Geneva. The United States signed the Minamata Convention in 2013.

Conclusion

EPA’s proposed mercury inventory reporting rule would add another regulatory mandate into the array of the already extensive mercury regulation. Affected companies may want to review the proposed rule and submit comments by the extended due date, January 11, 2018.

Beveridge & Diamond’s Chemicals, Products & Nanotechnology Practice Group provides strategic, business-focused advice to the global chemicals industry. We work with large and small chemical companies whose products and activities are subject to EPA’s broad chemical regulatory authority under TSCA and state chemical restrictions. For more information, please contact Mark Duvall.

7 These descriptions of reporting entities do not exactly match the descriptions of activities that the proposed rule would cover, e.g., export, storage, and distribution in commerce activities. Presumably the rule would not apply to entities that solely engage in these activities, which arguably would be persons “in trade” without manufacturing or importing mercury, one exempt class under the proposed rule. See 82 Fed. Reg. 49564, 49566 (Oct. 26, 2017); Proposed 40 C.F.R. § 713.17.

8 “Otherwise intentional use in the manufacturing process” is not defined in the proposed rule. EPA explained that it would be “similar, but not identical to” TSCA section 3(13) “processers.” EPA considered that “otherwise intentional use of mercury in a manufacturing process” encompasses “the intentional use of mercury” when “no mercury remains or any mercury present in the final product exists only as an impurity.” 82 Fed. Reg. at 49570-49571.

15Compare proposed 40 C.F.R. § 713.9(c) with proposed 40 C.F.R. § 713.9(d). See also 82 Fed. Reg. at 49575-49576. Note that the proposed rule itself used the word “sellers” in reference to certain reporting parties in the IMERC states. These parties would also be required to report under this proposed rule, even though such persons would not easily be categorized into any of the three groups of reporting entities discussed above. Compare proposed 40 C.F.R. §§ 713.9(c), 713.13(c) with proposed 40 C.F.R. § 713.15. EPA’s preamble adopted the manufacturer / importer reference in the discussion of reporting parties subject to the IMERC program. 82 Fed. Reg. at 49575 (Table 4).

24 Another exception under this provision is coal, which can naturally contain mercury. Conveyance, sale, distribution, transfer, or leasing of coal by the federal agencies are excluded from the section 6(f)(1) ban. Similarly, export of coal is not subject to the ban under section 12(c).

25 42 U.S.C. § 6939f(a). Under the MEBA, the DOE facility for long-term storage must be operational by 2013. This did not work out. Congress extended the deadline to 2019 under the LCSA. See LCSA, Pub. L. 114–182, sec. 10(c), 130 Stat. 448, 478 (2016).

32 This provision belongs to a separate program under TSCA Title V, which was enacted in 2007 as part of the Energy Independence and Security Act. Energy Independence and Security Act of 2007, Pub. L. 110-140, 121 Stat. 1492.

36 For example, in 2010, EPA finalized a guidance to help states implement the fish tissue-based methylmercury water quality criterion. The criterion was initially promulgated in 2001 and lays the foundation for a series of surface water protection programs under the Clean Water Act. In 2011, EPA proposed the Mercury and Air Toxics Standards (MATS) under the Clean Air Act’s Hazardous Air Pollutants (HAP) program, regulating emissions of mercury and other air toxics from power plants. The MATS program has subsequently been subject to litigation and revisions. More recently, again under the Clean Water Act, EPA promulgated a regulation on dental amalgam discharge in June 2017.

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